70 A.D.2d 524 | N.Y. App. Div. | 1979
Lead Opinion
—Judgment, Supreme Court, New York County, rendered April 22, 1977, convicting defendant, after jury trial, on two counts of perjury in the first degree (Penal Law, § 210.15), and sentencing him to five years’ probation, is affirmed. The Presiding Justice’s dissenting opinion quite fully sets forth the facts. The definition of "firearm” contained in section 265.00 of the Penal Law is of course irrelevant to the present case. It is a definition "As used in this article and in article four hundred,” neither of which relates to a perjury prosecution. As stated in United States v Bonacorsa (528 F2d 1218, 1221): "A defense to a charge of perjury may not be established by isolating a statement from context, giving it in this manner a meaning entirely different from that which it has when the testimony is considered as a whole * * * If, in the natural meaning in the context in which words were used they were materially untrue, perjury was established.” The jury could find that in the examination of the defendant the parties were using the words "firearm” and "weapon” interchangeably. Even a pellet gun might easily be included within such a common usage, as indeed Roche, the assistant investigation commissioner, testified. Thus one dictionary defines "firearm” as including "a gun from which a projectile is fired.” (American College Dictionary, 1947, Random House.) As pointed out in United States v Bonacorsa, (supra, p 1221): "In any event, it was for the jury to decide whether appellant gave, or could have given, any othér meaning to the question * * * Absent fundamental ambiguity or impreciseness in the questioning, the meaning and truthfulness of appellant’s' answer was for the jury.” The Judge submitted to the jury the question of the meaning of the statement. He said: "In determining whether the Defendant was, whether he made a false statement when he was asked whether or not he ever discharged a firearm at pigeons in the Prospect Park Zoo you must
Dissenting Opinion
dissents in a memorandum, as follows: Defendant Neumann, the then acting supervisor of the Prospect Park Zoo in Brooklyn, was called before the New York City Department of Investigation (the Department) on April 14, 1976. The Department was conducting an investigation into the affairs, functions, accounts, methods, personnel and efficiency of the Department of Parks. On that date, the defendant was examined by Thomas Roche, an assistant investigation commissioner. During a portion of his interrogation, the defendant was asked the following questions that are pertinent to this appeal: "Q. Do you know if anybody has ever used a firearms to try to disperse the pigeons? A. Not to my knowledge. Q. Have you ever used a firearms to disperse the pigeons? A. I have not. Q. Do you own any firearms? A. I do. Q. Could you tell me what kinds they are? A. 306, very powerful gun much too big for pigeons. Q. Do you own any other firearms? A. Well, I have some in my summer home in Miami, but they are not registered. Also I have a New York City pistol permit. Q. For what kind of weapons? A. Which? Q. The New York City Pistol Permit? A. .357 Magnum. Q. Do you own any other weapons at home in New York? A. I have a 12 gauge shotgun. Q. Have you ever registered any weapons with the City of New York? A. All of my weapons are registered. Q. Do you know which ones those are? A. All of them. Q. All the ones you mentioned? A. Yes. Q. Are there any others those that you haven’t mentioned? A. No. Q. You own a .22? A. I do not. Q. Do you own a pellet gun? A. I do not. Q. Does the zoo own a pellet gun? A. Not to my knowledge. Q. Does the zoo own a .22? A. Not to my knowledge. Q. Where are your own personal weapons located? A. At my residence. Q. In Staten Island? A. That’s correct. Q. And, you say you’ve never discharged a weapon or firearms at any of the pigeons or birds at the zoo? A. Correct. Q. Have you ever seen anybody do that? A. No. * * * Q. I’d like to go back to one other area we discussed and that is the pigeons. Have you ever, at any time, discharged a firearms at any of the pigeons? A. No. Q. Has any employees of the zoo? A. Not to my knowledge. Q. Did you ever discharge a firearm anywhere within the geographical confines of the zoo? A. No. Q. Are you certain of that? A. I don’t ever recall doing it. Unless—Well, the tranquilizer gun. Q. Other than the tranquilizer gun? A. No. Q. And you’re absolutely certain you never discharged a firearm in the Elephant House at the pigeons? A. Certain. Q. Have you ever seen anyone else doing that? A. No I haven’t. We on occasion would discharge the tranquilizer gun to chase them it makes a loud noise. But that’s nothing more than a noise that’s all it is. Anyone seeing would not know that unless they were thoroughly familiar. Q. But the tranquilizer gun does fire anything. A. Only darts which are quite large and inaccurate. It would be inappropriate to use for shooting pigeons. Q. Where is your office located? A. Elephant House. Q. You think if somebody was discharging a gun in the Elephant House you would hear? A. If I were there I believe, I would. Q. Your own private weapon for what purpose do you use them? A. I am a target shooter. Q. You belong to a club? A. I do. Q. Which club? A. Magnum Rifle and Pistol. Q. Where is that located? A. Well, the range what one would call the club that is the Fort Hamilton Parkway Range. I don’t know the address. I am sure you would be able to find it yourself. Q. That’s in Brooklyn? A. Yes. Q. Have you ever owned a .22 rifle? A. Not in the last— More than five years, maybe 7, maybe 9. It’s been so long. Q. Have you